Judicial Review & Basic Structure Doctrine.

Judicial review.

In the Constitution of India, Article 13 deals with Judicial review. Judicial review is a judiciary’s
power to review acts of parliament and acts of executive. It aims to ensure rule of law,
constitutionalism, checks and balances, and protect fundamental rights.

Judicial review is an invention of the USA, declared by Justice Marshall in the Marbury vs
Madison case, 1803. In any country, where the judiciary has power of judicial review over the
acts of parliament, that country will automatically have ‘the principle of supremacy of
judiciary.

Supremacy of constitution and supremacy of judiciary are one and the same thing because the
constitution is supreme but ‘constitution is what judges say’.

Comparison between Britain and USA.

Britain is an example of supremacy of parliament. In Britain, the judiciary will have no power
to review acts of parliament. Because in the absence of a written constitution, there is no
difference between constitutional law and ordinary law. In Britain the judiciary only reviews
the act of executives.

In the USA, since a written constitution exists, there is a limitation on congress with respect to
law making. Hence in the USA, legislative supremacy does not exist. The Constitution provides
for checks and balances.

In India- During the time of Pandit Nehru, there was a lack of clarity. Pandit Nehru believed
that the Indian system is modeled on the British system. He used to believe that India has the
concept of ‘supremacy of parliament’. Supremacy of Parliament to the extent that there is no
limitation even on the amending power of Parliament. It was also the phase of passive
judiciary. However, in Keshavanand Bharati case, Supreme Court asserted that Parliament
does not have unlimited powers.
Principles/Doctrines of Judicial Review

To examine the constitutional validity of an act, the judiciary in India follows the following
principles.

1. Presumption in favor of constitutionality of law. /This also implies – no suo moto

Judicial Review of laws. {However in case of violation of fundamental rights only, the
judiciary goes for the application of suo-moto (example of judicial activism).}

2. The doctrine of liberal interpretation. e.g. Maneka Gandhi case.

3. Literal interpretation. e.g. A.K. Gopalan case.

4. Doctrine of reading down. e.g. Abolition of Section 377 of IPC. Part of the law is
narrowed down while other provisions continue to operate.

5. Doctrine of ab-initio – Some laws become invalid from the date the constitution comes
into existence if they are in contradiction.

6. Doctrine of eclipse (shadow) – Judiciary may adopt the doctrine of eclipse by which a
law passed by duly constituted legislature is kept in a shadow. When? When its
principles appear in conflict with the constitution. However when required, it can be
validated. Doctrine of eclipse was declared in Bhikaji Narain vs State of MP case 1955.
With respect to post-constitutional laws, doctrine of eclipse was pronounced in the
State of Gujarat vs Ambika Mills case.

7. Doctrine of severability. It means the entire law is not declared null and void but only a
part of law which seems inconsistent is taken out.

8. Doctrine of colorable legislation and doctrine of pith and substance. What cannot be
done directly, cannot be done indirectly. It will be treated as legislative fraud.

9. Doctrine of Prospective overruling- Taken from USA, for the first time applied in
Golaknath case 1967.
Note-

In India, the Judiciary does not accept the doctrine of waiver. Doctrine of waiver is accepted in
the USA. People have absolute rights in USA. Hence the state cannot limit the rights, the State
can only request. The person can waive off his rights voluntarily in the wider interest of the
society. /Waiver means the person himself gives away his right.

In India, the doctrine of waiver has not been accepted because of poverty and vulnerabilities.

The Doctrine of Basic Structure.

It is a doctrine of Judicial Review applied by higher judiciary in India to examine the validity of
constitutional amendments.

Doctrine of basic structure. Invention of Indian Judiciary. It makes the Indian Supreme Court,
the strongest court in the world. In no other country, the judiciary has power to review
amendments of the constitution. Judiciaries can only review ordinary laws. Amendment is the
feature of the constitution itself. Doctrine of basic structure allows the judiciary to question
the constitution itself. /Judiciary has assumed the role of constituent assembly.

Doctrine of basic structure is to check the validity of constitutional amendment ONLY.

Ordinary law can be questioned on the basis of the Constitution (written provisions) whereas
amendment needs to be tested on the basis of ‘basic structure’. It is not written in the
constitution, it is to be determined by Judiciary from time to time.

Reasons for Emergence of Doctrine.

Evolution of the doctrine to be understood in context of the initial judicial disputes in India
between fundamental rights and directive principles.

● IMPORTANT EVENTS.

Champakam Dorairajan vs State of Madras 1950.

[First case involving the dispute between DPSP and FRs.]

Reservation in educational institutions implemented by the state of Madras was challenged in
the case. Champakam Dorairajan, a Brahmin woman, challenged the continuation on the
ground of Art 14. As per Art 13(1), it becomes null and void ab-initio.

Government put forward its position that as per Art 46, it is a duty of the government to take
steps for the promotion of educational and economic interests of the weaker sections. It
mentions that the state will take ‘special care’.

Issue-

Art 14 – constitutionally guaranteed. Art 46 – is a DPSP. Judiciary suggested that the

government cannot abridge fundamental rights by ordinary law. It can be done only by
amending the constitution. Govt. has brought the 1st Amendment Act, which introduced
clause 4 in Art 15.

Art 15(4) – State can make special provision for advancement of any ‘socially and
educationally’ backward classes of citizens.

Art 31A – it provided exception to Right to Property. It provides for saving of certain laws.

Art 31B – it added 9th schedule. It has been mentioned that no act or regulation put into 9th
schedule shall be called into question on the ground that it abridges any of the fundamental
rights. 9th schedule used to known as ‘blackhole’ of the constitution.

Shankari Prasad vs UOI case 1951

It was the first case on the subject of amending power of parliament. The first amendment
act was challenged. The Supreme Court upheld the validity of the 1st amendment act. It
implies that there are no limitations on the power of parliament to amend the constitution.

This was the era of ‘passive judiciary’. Judiciary avoided confrontation with Nehru.

Golak Nath vs State of Punjab 1967.

It is a first example of judicial activism. It led to the foundation of the doctrine of basic
structure.
Judiciary held that fundamental rights are ‘sacrosanct’, and cannot be diluted even by
amendment. [1967 marks the beginning of breakdown of hegemony of Congress. And
therefore judiciary could make such pronouncement.]
People criticized the approach of the judiciary. The Judiciary was accused for being elitist.
Putting restrictions in India’s ‘social revolution’.
Government’s response.
Govt. brought 24th AA 1971, it amended Art 368.
1. Instead of ‘procedure of amendment’, it added ‘power and procedure’.
2. It made it mandatory for the president to give ascent to the amendment. The President
retains pocket veto, but loses ‘absolute veto’.
3. It added clause (3) in Art 368 – Nothing in Art 13 shall apply to any amendment made
under Art 368. It added clause (4) in Art 13 – Nothing in this article shall apply to any
amendment of this constitution under Art 368.
25th AA 1971. Added Art 31C – It can be seen as the government's attempt of harmonious
construction between fundamental rights and directive principles.
Art. 31 C. If any law is made to give effect to the objectives of Art 39 (b) (c) – [Social and
economic rights], such law will not be challenged on the ground that it contravenes Art 14,19
and 31.
Keshavanand Bharati vs State of Kerala 1973.
Validity of 24th and 25th amendment Act was challenged.
1. 24th AA 1971 – judiciary upheld the validity but it has put a rider (limitation. There is no
limitation on the amending power of Parliament except that it cannot amend the ‘basic
structure’ of the constitution.
2. 25th AA 1971, Judiciary upheld the validity. Judiciary agreed that the Golaknath case has
destroyed the harmony between FRs and DPSP.
Thus doctrine of BASIC STRUCTURE emerged from Keshavanand Bharati case of 1973.
Response of the Government.
42nd AA. 1976. It changes. Art 31C – Now immunity is given to all laws implementing any of
the directive principles and not just 39(b) and 39(c).
Govt. also added clause (4) in Art 368 – No amendment of the constitution shall be called in
question in any court on any ground. Any ground means not even on the ground of ‘basic
structure’. Any court denotes even the Supreme Court.
It also added clause (5) for the same article – For removal of doubts, there is no limitation
whatsoever on the amending power of parliament.
Govt. destroyed the harmony, made fundamental rights subordinate to directive principles.
The Supreme Court in Minerva Mills case 1980, restored the status as it was under 25th AA.
Minerva Mills case 1980
Judiciary declared all above-mentioned amendments [31C, 368(4), 368(5)] null and void.
IR Coelho vs State of Tamil Nadu 2005.
The doctrine of basic structure is applicable with respect to the laws placed under 9th
schedule also. However it will be applied only for the cases which are placed after the day of
the judgement of Keshavanand Bharati case (24th April 1973) and not for legislations before
that.
Criticism of Basic Structure doctrine.
It was criticised for being an extreme example of judicial creativity. Instead of limiting itself to
the written provisions, the judiciary is trying to establish ‘the metaphysical elements’ of the
constitution.
The doctrine came into existence by the vote of just one judge. Six judges on the bench were
against and seven were in favour. The Judiciary has not given the exhaustive list of what
constitutes basic structure. It means the judiciary enjoys discretionary powers.
However it is also suggested that there is no need to give an exhaustive list, better to keep the
provision as safety valve.

Logic behind basic structure doctrine.

The fundamental logic is the difference between amendment and rewriting of the
constitution. Even when the constitution is amended, we should be able to understand the
original constitution. Parliament cannot be equated with constituent assembly. Judiciary
clarified that even when amendment is passed in both the houses with unanimity and
absolute majority, then also amendment has to pass the test of basic structure. Parliament
represents political majority whereas constituent assembly represents general will / popular
sovereignty. It was desirable because the executive was bent on destroying the constitution.
Thus Judicial activism was needed against the overreach by the executive. What is the
contribution of doctrine of basic structure? The survival of democracy in India. Had Judiciary
not been invented, India would have gone in the way of other third world countries. Hence it
is a necessary evil.